What’s next for NLRB after Supreme Court’s Canning decision?

The U.S. Supreme Court’s unanimous June 26 ruling in NLRB v. Canning that three of President Obama’s 2012 appointments to the National Labor Relations Board (NLRB) were illegal means that some 600 NLRB decisions made between January 2012 and July 2013 must be reheard.

Before that can happen, however, 55 of those cases currently on appeal must be adjudicated, according to NLRB General Counsel Richard Griffin. The NLRB is likely to move to have those decisions set aside so it can speed up the rehearing process, but that’s still going to bog down the time-consuming task of clearing the logjam.

The impact for employers: Expect the NLRB to focus on old cases, not new ones, for the foreseeable future. Some of the cases to be reheard involve so-called “quickie elections” and mandatory arbitration class-action waivers.

Note: Only one current member of the NLRB—Chair Mark Gaston Pearce—participated in any of the decisions invalidated by Canning. That means the rehearings will be conducted by entirely new panels of NLRB members.

Although the current NLRB is ideologically similar to the 2012-2013 board and may well decide old cases similarly, it’s not a sure thing.

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